The Corner
by ANDREW C. MCCARTHY
Denunciation abounds in the analysis of Donald Trump’s
call for a temporary suspension of immigration into the United States by
Muslims. As I argued in a column yesterday, I am against a categorical ban on
Muslim immigration, but I believe
Muslim immigrants should be examined about Islamic supremacism and that
adherents to that counter-constitutional ideology should be denied admission.
Consequently, I am hearing one of the same objections
lodged against Trump’s sweeping proposal, namely: It is impractical because
immigrants will lie about their religious affiliation.
This contention borders on the frivolous. I was sorry to see Charles Krauthammer rely on it last night – even if it was fodder for a few much needed laughs as Dr. K evoked the “George Washington cherry-tree standard of not telling a lie to an infidel immigration officer,” and Chris Stirewalt quipped that maybe, as an assurance that they were not Muslims, would-be immigrants could be forced to eat a ham sandwich. Funny … but also suggestive of basic misconceptions about immigration law.
While many commentators acknowledge that aliens have no right to enter the United States, they miss the legal significance of this fact: In federal admission proceedings, the burden of proof is on the immigrant. It is the alien who must demonstrate, to the satisfaction of the examining official, that he or she is not subject to exclusion under any provision of the immigration law. It is not up to the government to prove that the alien should not be admitted – or, as relevant here, to prove that the alien is lying.
Because the decision about whether to admit an alien into the country is left to the government’s discretion, the alien loses if the examiner is not satisfied. The legal theory that immigration enforcement is a federal responsibility is based on the central government’s being sovereign, particularly at the border. An alien has no judicially enforceable right to enter over the sovereign’s objection. So while an alien, in trying to satisfy his burden of persuasion, may offer to eat a ham sandwich, it is highly unlikely that a government examiner would try to force him to do so.
In many circumstances, Charles would be right to point out that Islamists and other Muslims could defeat proposed regulations simply by lying. For example, when it was alleged that Trump had proposed a Muslim registry, I pointed out that this suggestion was not only illegal – because it would subject Muslim Americans to discriminatory investigation – but impractical because some Muslims would simply defy the registration requirement and dare the Justice Department to prosecute them.
This contention borders on the frivolous. I was sorry to see Charles Krauthammer rely on it last night – even if it was fodder for a few much needed laughs as Dr. K evoked the “George Washington cherry-tree standard of not telling a lie to an infidel immigration officer,” and Chris Stirewalt quipped that maybe, as an assurance that they were not Muslims, would-be immigrants could be forced to eat a ham sandwich. Funny … but also suggestive of basic misconceptions about immigration law.
While many commentators acknowledge that aliens have no right to enter the United States, they miss the legal significance of this fact: In federal admission proceedings, the burden of proof is on the immigrant. It is the alien who must demonstrate, to the satisfaction of the examining official, that he or she is not subject to exclusion under any provision of the immigration law. It is not up to the government to prove that the alien should not be admitted – or, as relevant here, to prove that the alien is lying.
Because the decision about whether to admit an alien into the country is left to the government’s discretion, the alien loses if the examiner is not satisfied. The legal theory that immigration enforcement is a federal responsibility is based on the central government’s being sovereign, particularly at the border. An alien has no judicially enforceable right to enter over the sovereign’s objection. So while an alien, in trying to satisfy his burden of persuasion, may offer to eat a ham sandwich, it is highly unlikely that a government examiner would try to force him to do so.
In many circumstances, Charles would be right to point out that Islamists and other Muslims could defeat proposed regulations simply by lying. For example, when it was alleged that Trump had proposed a Muslim registry, I pointed out that this suggestion was not only illegal – because it would subject Muslim Americans to discriminatory investigation – but impractical because some Muslims would simply defy the registration requirement and dare the Justice Department to prosecute them.
A registration requirement, however, would be saliently
different from exclusion under the immigration laws. In the registry situation,
we are dealing with Muslims who already have significant rights under American
law (i.e., citizens and legal aliens), such that the government has the burden
of establishing both the lawfulness of the requirement and a person’s
noncompliance with it. By contrast, an alien who has no right to be present in
the United States in first place has no legal cards to play. It is up to the
alien to convince the examiner that he should be admitted; if he cannot do
this, he is not allowed to enter. The government does not have to justify
shutting the door on him.
Two last points.
1. Both my column and yesterday’s National Review editorial point out that applicants for immigration have long been required to provide assurances of fidelity to American constitutional principles – and during the Cold War, assurances that they were not adherent to the ideology of our enemies. These mandates are worthwhile not only for what we learn from the applicants but as an expression of what we expect – and what we reject – as a nation.
Two last points.
1. Both my column and yesterday’s National Review editorial point out that applicants for immigration have long been required to provide assurances of fidelity to American constitutional principles – and during the Cold War, assurances that they were not adherent to the ideology of our enemies. These mandates are worthwhile not only for what we learn from the applicants but as an expression of what we expect – and what we reject – as a nation.
Of course, it is always possible that people will lie –
just as they may lie about all manner of information our law requires
disclosure of. That is not a good reason to forgo disclosure requirements. It
is a felony punishable by five years’ imprisonment to lie on government forms
or to government agents conducting a legitimate investigation. Many people are
prosecuted for such offenses. Besides serving as a demonstration of national
seriousness that could discourage immigration fraud, such prosecutions would
provide a basis for swift deportation after any prison sentence has been served.
2. I contend, as do the editors and Mark Krikorian, that there is nothing unconstitutional about Trump’s proposal. (I’m referring to the proposal in its final form. As originally floated, the proposal of “a total and complete shutdown of Muslims entering the United States” would have included Muslim American citizens and lawful permanent resident aliens. That would be lawless, and recklessly so). It is probably true, as Jim Geraghty suggested yesterday, that a majority of the Supreme Court would hold Trump’s proposal unconstitutional, but if so the justices would be doing politics, not law – something for which the Court has become notorious.
2. I contend, as do the editors and Mark Krikorian, that there is nothing unconstitutional about Trump’s proposal. (I’m referring to the proposal in its final form. As originally floated, the proposal of “a total and complete shutdown of Muslims entering the United States” would have included Muslim American citizens and lawful permanent resident aliens. That would be lawless, and recklessly so). It is probably true, as Jim Geraghty suggested yesterday, that a majority of the Supreme Court would hold Trump’s proposal unconstitutional, but if so the justices would be doing politics, not law – something for which the Court has become notorious.
Were that to happen, I assume it would be based on some
newfangled right of aliens outside the United States not to be discriminated
against on religious grounds. Let’s put aside the contention in my column that
Islam is not merely a religion but a political ideology (with its own governing
system, societal framework, and legal code – sharia). If the “constitutional”
objection here is religious discrimination, the simple answer, as Mark Levin
and I discussed last night, would be a moratorium
on all immigration across the board.
Would that be overkill? Of course it would. That is
one reason why the actual Constitution does not require it – it grants the
government broad discretion to make categorical distinctions. But if the choice
we were stuck with was overkill or the continuation of business as usual – with
the government neither enforcing the laws nor competently screening out likely
threats to the United States – I would overkill every time. The advocates of
“comprehensive immigration reform” keep telling us the system is broken. When a
broken system endangers lives, the commonsense response is to shut it down
until it has been repaired – and the shut down provides a powerful incentive to
get on with the repair work.